How we choose judges worthy of review

More than 30 years ago, a judge in Fillmore County in the southeast corner of Minnesota had an affair with his secretary.

The affair led to the secretary divorcing her husband, and the judge presided over part of the divorce proceedings.

The husband complained to the state Board on Judicial Standards, which censured the judge and fined him $5,000, but did not remove him from office.

Minnesota district court judges are elected on a vote of the entire judicial district, not just the county where they primarily serve. Voters in Fillmore County were strongly opposed to the judge’s re-election, but the rest of the district, having little knowledge of Fillmore County gossip, easily re-elected the judge.

That episode offers just one example that suggests Minnesota’s method of selecting judges needs to change. This week, a bipartisan group offered an alternative.

Currently, Minnesota’s judges are “elected” in name only. Almost all Minnesota judges resign in mid-term. The vacancy is then filled by the governor. In most cases, the governor has a judicial review committee that takes applications for the vacancy, whittles the pool of applicants down to two or three, the governor meets with each finalist for a few minutes, and then makes a decision.

The appointee then serves out the remainder of the term, and only then faces the voters for the first time. Most of the time, the judges have no opponent. They are routinely re-elected, and it would take a major scandal such as occurred in Fillmore County, to grab anybody’s attention.

This may in part be because of lack of information. Ninety-nine percent of what judges do in this state has nothing to do with partisan politics. They handle foster care and adoption proceedings, they try criminal cases, handle civil lawsuits and probates, etc.

While the human mind is complex and can come up with all sorts of bizarre reasons for a decision, Minnesota’s judges generally don’t dream up crackpot schemes to free rapists based on some “free love” doctrine or murderers because they were misunderstood as children. They apply the law as written.

Still, nationally attempts to politicize the judiciary continue. In some states, all judges are elected as Democrats or Republicans. Millions get spent to elect a judge to a seat that pays only a tenth of the amount contributed to the campaign and that consumes most of the judge’s time on routine matters.

Only when the courts are called on to decide an election, such as the 2000 presidential election or the 2008 U.S. Senate contest between Al Franken and Norm Coleman, do things get messy. It’s never pretty. No matter what the courts decide in those instances, they look like a bunch of partisan hacks.

Still, there continues to be the nagging fear that some judge will decide he or she should make the law instead of interpret it, and co-opt the legislative process. Abortion and, in some states, gay marriage are two examples where that has happened, and the result inevitably contributes to polarization of the electorate and politicization of the judiciary.

That’s why voters are reluctant to give up “electing” judges, even though they know almost nothing about them and rarely vote to put them in office in the first place, since the governor is filling vacancies.

The Coalition of Impartial Justice is pushing for an end to judicial elections as they are now. Instead, they would formalize the process by which the governor would appoint judges after an extensive peer review of applicants is done.

The big difference would be that the judges would face the voters in retention elections after each term. Voters would have the right to oust them or keep them. If they oust them, the process would begin again, with the bipartisan panel creating a pool of candidates from which the governor would choose.

To help voters make that decision, a nonpartisan board would do an independent assessment of a judge’s tenure that would be shared with voters. That’s more information than most voters have now.

If partisanship runs amok, it’s conceivable that, if the governorship changes parties, that the governor’s party could vote to oust judges appointed by a governor of a different party, but the likelihood of that happening seems remote, unless the judge has acted in a partisan way.

To repeat, almost all of what judges deal with has nothing to do with partisan politics. They help people divide up property because of divorce, death or dispute. They make sure the accused get a fair trial. They try to help children when families fail. Etc.

In order to go to this new system, a constitutional amendment would need to be approved by voters. Given the sham of judicial elections today, it may be worth it for Minnesota voters to have a discussion on the topic this fall.

Tom West is the editor and general manager of the Record. Reach him at (320) 616-1932 or by email at [email protected]